Opinion
DOCKET NO. A-5683-09T2 DOCKET NO. A-0938-12T2
09-22-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARCO DIGIOVANNI, Defendant-Appellant.
Marco DiGiovanni, appellant pro se on A-5683-09. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent on A-0938-12 and A-5683-09 (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Joseph E. Kr akora, Public Defender, attorney for appellant on A-0938-12 (Carolyn V. Bostic, Designated Counsel, on the brief). Appellant filed a pro se supplemental brief on A-0938-12.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 86-02-0621. Marco DiGiovanni, appellant pro se on A-5683-09. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent on A-0938-12 and A-5683-09 (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Joseph E. Kr akora, Public Defender, attorney for appellant on A-0938-12 (Carolyn V. Bostic, Designated Counsel, on the brief). Appellant filed a pro se supplemental brief on A-0938-12. PER CURIAM
In these appeals, calendared back-to-back and addressed in a single opinion, we consider the challenges filed by defendant Marco DiGiovanni, who is confined at Northern State Prison, to an October 12, 2012 amended judgment of conviction (JOC) following a resentencing hearing, and a second order dated June 21, 2010, dismissing defendant's post-conviction relief (PCR) petition. We have reviewed the arguments on appeal advanced by defendant in light of the record and applicable law. We affirm the amended JOC and the order denying PCR.
Defendant was tried and convicted by a jury of murder (count one), possession of a handgun without a permit (count two) and possession of weapons for an unlawful purpose (count three). Count three was merged into the murder conviction. Defendant was sentenced on December 5, 1986 to an extended term as a persistent offender, of life plus ten years subject to a thirty-year period of parole ineligibility on count one, with a consecutive term of ten years subject to a five-year period of parole ineligibility on count two.
Defendant was tried with his co-defendant, his son Marco Vincent DiGiovanni. Challenges by co-defendant (A-2568-86) were consolidated with those filed by defendant and addressed in one opinion.
His conviction and sentence were affirmed on appeal and certification was denied. State v. DiGiovanni, A-2307-86 (App. Div. Aug. 6, 1990), certif. denied, 127 N.J. 325 (1991). This court's unpublished opinion recited the factual circumstances surrounding the crime, defendant's arrest, his trial and sentence, which we incorporate by reference. Ibid.
Since then, defendant has filed numerous PCR petitions. The first was denied on December 20, 1991; that order was affirmed on appeal and certification was denied. State v. DiGiovanni, A-2602-91 (App. Div. Apr. 25, 1994), certif. denied, 138 N.J. 271 (1994). Defendant's motion for a new trial based upon assertions of newly discovered evidence was denied. We affirmed the trial court's order and certification was denied. State v. DiGiovanni, A-0888-03 (App. Div. May 23, 2006), certif. denied, 188 N.J. 355 (2006). Defendant also pursued federal habeas corpus relief, which was denied.
Defendant filed his next PCR petition and alternatively a motion seeking modification of an illegal sentence on September 9, 2009. Initially, the motion was denied as untimely, except for the sentencing challenge, based on the State's failure to prepare a presentence report. Counsel was appointed. When the State located the pre-sentence report, the judge also denied this motion. Defendant moved for reconsideration and the judge determined a hearing was necessary to consider defendant's contention that the pre-sentence report was never provided to him. Reconsideration of the remaining issues was denied.
The resentencing hearing was held on March 29, 2012. A current pre-sentence report was prepared and provided to defendant. Corrections to the facts recorded in the pre-sentence report were identified. After merger, the judge granted the State's motion to impose an extended term sentence on the murder of sixty-five years with a thirty-year parole disqualifier. On the unlawful gun possession charge, defendant was sentenced to an extended term of eight years to be served consecutively, with a four year period of parole ineligibility. The revised JOC was filed on April 20, 2012.
Defendant next moved to reduce his sentence, which was denied. A corrected JOC to properly record applicable jail credits was filed on October 12, 2012. Defendant appealed (A-5683-09). He presents the following arguments for our consideration:
POINT I:In appellant's pro se supplemental brief, he argues:
THE DEFENDANT'S RESENTENCE OF 65 YEARS WITH A 30-YEAR PAROLE INELIGIBILITY TERM FOR MURDER AND A CONSECUTIVE SENTENCE OF EIGHT YEARS WITH A FOUR-YEAR INELIGIBILITY PERIOD ON THE GUN POSSESSION CHARGE IS MANIFESTLY EXCESSIVE.
A. THE SENTENCING COURT ABUSED ITS DISCRETION BY IMPOSING A CONSECUTIVE SENTENCE.
1. THE DEFENDANT'S SENTENCE MUST BE VACATED AND REMANDED BECAUSE THE SENTENCING COURT FAILED TO STATE THE REASONS JUSTIFYING THE CONSECUTIVE SENTENCE.
2. THE COURT'S IMPOSITION OF A CONSECUTIVE SENTENCE ON THE UNLAWFUL POSSESSION OF A WEAPON CHARGE WAS AN ABUSE OF DISCRETION BECAUSE THE YARBOUGH [] CRITERIA WERE NOT SATISFIED.
B. THE COURT ABUSED ITS DISCRETION BY REJECTING MITIGATING FACTORS 8 AND 9, AND BY REFUSING TO FIND ANY MITIGATING FACTORS FOR DEFENDANT'S PROVEN REHABILITATION, HIS MENTAL ILLNESS, POOR PHYSICAL HEALTH AND AGE.
POINT II;
THE COURT SHOULD CONSIDER THE ISSUES RAISED IN DEFENDANT'S PRO SE BRIEF IN SUPPORT [OF] HIS REQUEST FOR RESENTENCING.
THE SENTENCE FOR POSSESSION OF A WEAPON, WITHOUT A PERMIT, WAS PREDICATED UPON AN UNLAWFULLY OBTAINED CONVICTION.
State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
Defendant's PCR application and a request for assignment of counsel were filed on November 19, 2009. In a written opinion, the judge denied relief, concluding defendant's PCR petition was procedurally barred. The judge found no basis to conduct an evidentiary hearing. The order denying relief was filed on June 21, 2010. Defendant appeals from that order, arguing:
CRITICAL STAGES OF THE PROCEEDINGS WERE HELD IN THE ABSENCE OF THE PRO SE DEFENDANT WHICH IS CONTRARY TO UNITED STATES CONSTITUTIONAL AND STATE LAW. THE PRO SE DEFENDANT NEEDED TO BE PRESENT FOR A FAIR TRIAL AND THE FACT THAT HE WAS NOT IS AN EXCEPTIONAL CIRCUMSTANCE TO A TIME BAR.We consider these arguments.
The State's suggestion to summarily deny relief citing Rule 2:8-3(b) is inapposite, inasmuch as no motion for summary disposition was filed. R. 2:8-1.
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In addition to defendant's general attack upon the length of his sentence, discussed below, he contends the imposition of a consecutive sentence along with a period of parole ineligibility for unlawful possession of a handgun was unsupported. In her factual findings, the judge addressed the consecutive sentence imposed, stating:
The [c]ourt finds that the sentence on [c]ount [t]wo [unlawful possession of a weapon] shall be consecutive to the sentence on [c]ount [o]ne [murder], pursuant to Yarbough, . . . . This defendant has demonstrated an inability to conform to society's rule, and an unwillingness to lead a productive life, thereby putting the public at risk. And therefore, making him a candidate for a consecutive sentence.The State maintains the unlawful possession of weapons conviction related to the .22 caliber weapon recovered from the defendant's toilet tank, not the murder weapon, which was separately recovered at the crime scene. DiGiovanni, supra, A-2307-86 (slip op. at 4).
When determining whether consecutive, rather than concurrent sentences should be imposed, a sentencing court is guided by an examination of whether: (1) the crimes and their objectives were predominantly independent of each other; (2) the crimes involved separate acts of violence or threats of violence; (3) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior; (4) any of the crimes involved multiple victims; and (5) the convictions for which the sentences were imposed were numerous. Yarbough, supra, 100 N.J. at 644. These five guidelines are applied qualitatively in determining the appropriate sentence to ensure there are no "free" crimes. Id. at 639.
"There shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses." N.J.S.A. 2C:44-5(a). "[I]n molding a consecutive sentence, a court will make an overall evaluation of the punishment for the several offenses involved, State v. Rodriguez, 97 N.J. 263, 274 (19[8]4), while being conscious of the fact that its goal is not to find the maximum possible period of incarceration for a convicted defendant." State v. Mosch, 214 N.J. Super. 457, 464 (App. Div. 1986) (citing Yarbough, supra, 100 N.J. at 646 (citation omitted)).
"Where separate crimes grow out of the same series of events or from the same factual nexus, consecutive sentences are not imposed." State v. Lester, 271 N.J. Super. 289, 293 (App. Div. 1994), certif. denied, 142 N.J. 453 (1995). However, the imposition of "[c]onsecutive sentences [is] not an abuse of discretion when separate crimes involve separate victims, separate acts of violence, or occur at separate times." State v. Copling, 326 N.J. Super. 417, 441 (App. Div. 1999) (citations omitted), certif. denied, 164 N.J. 189 (2000).
Defendant's reliance on our holding in Copling is misplaced. In Copling, a similar challenge was presented requiring our analysis of whether consecutive sentences for murder and unlawful possession of a weapon were appropriate. Ibid. The defendant was charged with and convicted of, inter alia, murder and unlawful possession of the gun used to kill the victims. Id. at 422. We concluded the facts could not support the trial judge's expressed rationale for imposing consecutive sentences for these two crimes, that is, the "objectives and purposes" and the victims of the crimes were different, as victim of murder was the decedent and the victim of the unlawful gun possession was society. Id. at 441. This was because:
The objective and purpose of the unlawful possession statute is to regulate and monitor those who possess weapons, presumably to prevent irresponsible owners from possessing weapons. The ultimate goal is to protect others from being killed by those who own weapons. "There is a strong legislative policy in this State with respect to gun control, designed to protect the public, which places restrictions on those who may carry such weapons and is intended to prevent criminal and other unfit elements from acquiring and possessing them." State v. Wright, 155 N.J. Super. 549, 553 (App. Div. 1978) (citations omitted). The purpose of the murder statute is obviously to protect the public and individuals from unlawful killing. Thus, the objective of each is similar. Furthermore, the victims sought to be protected by the two statutes are the same.
[Id.] at 441-42.]
The facts at hand materially differ from those of Copling. In this matter, defendant's sentence on count two resulted from possession of a separate weapon found in his apartment, which was not the murder weapon.
In imposing sentencing, the judge referenced Yarbough and her additional recited findings that appear to rely on this comment found in Mosch:
Consecutive sentencing may be an appropriate means to protect society from those who are unwilling to lead a productive life and resort to criminal activity in furtherance of their anti-societal lifestyle. Sometimes circumstances will indicate that defendant is the type of repetitive offender not likely to be rehabilitated and, therefore,
should be incarcerated under consecutive sentences for the protection of the public.
[Mosch, supra, 214 N.J. Super. at 464 (internal citations omitted).]
Also, in imposing sentence, the judge identified the facts of the case as taken from documents in the record, including our opinion issued on direct appeal. The judge thoroughly reviewed (1) defendant's extensive and violent criminal history, commencing as juvenile adjudications, twenty-six adult arrests between 1965 to 1986, including six convictions for indictable crimes, and prison infractions; (2) defendant's failure to successfully reject criminal conduct despite probation and prior incarceration; (3) the facts of the present offenses and their applicable aggravating and mitigating factors; and (4) defendant's submissions regarding his health, his positive behavior over the preceding fifteen year while in prison, including achievements, education, substance abuse treatment and contributing positively to the prison community.
We emphasized trial judges should identify all facts relied upon when making sentencing determinations; not merely acknowledge Yarbough was considered. Here, although the judge did not explicitly recite her specific findings under each of the five Yarbough considerations, the facts found in the record adequately support there were separate crimes, of a violent nature, occurring at separate times, against different victims, all of which meet Yarbough's considerations. Following our review, we conclude the concurrent sentence imposed for the separate weapons possession offense, distinct from the weapons possessed and used for the murder, is satisfactorily supported.
Defendant additionally posits his sentence is unduly harsh, arguing the judge abused her discretion by rejecting application of mitigating factors eight (defendant's conduct was the result of circumstances unlikely to reoccur) and nine (defendant's character and attitude make it unlikely he will commit another offense). N.J.S.A. 2C:44-1(b)(8) and (9). Defendant also contends the failure to consider his psychiatric conditions as a basis to excuse his conduct, see N.J.S.A. 2C:44-1(b)(4), was error. These arguments are unavailing and lack merit. R. 2:11-3(e)(2).
Our review of a sentence itself is also limited. State v. Miller, 205 N.J. 109, 127 (2011). We review a judge's sentencing decision under an abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). Upon review, this court's basic responsibility is to assure that the aggravating and mitigating factors found by the judge are supported by competent, credible evidence in the record. Ibid. This court must: (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]" (2) "require that the fact[-]finder apply correct legal principles in exercising its discretion[;]" and (3) "modify sentences [only] when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984). If a sentencing court properly identified and balanced the factors and their existence was supported by sufficient credible evidence in the record, the appellate court should affirm the sentence. State v. Cassady, 198 N.J. 165, 180-81 (2009).
Defendant's contention that he is unlikely to commit another crime and the circumstances of this murder were such they would not reoccur, are absolutely unfounded. The sentencing judge detailed defendant's extensive criminal history. Defendant has shown his religious conversion now guides his prison conduct, but that alone does not support the application of mitigating factors eight and nine. On the issue of defendant's alleged diminished mental capacity, the judge properly noted no expert report was provided to support such a claim.
Defendant's supplemental submission argues, for the first time on appeal, his conviction on the unlawful possession charge must be vacated because the jury charge did not include an instruction requiring a finding of the absence of a firearms permit. We reject this contention as meritless. R. 2:11-3(e)(2). See State v. Henderson, 433 N.J. Super. 94, 104 n. 10 (App. Div. 2013) ("An argument not presented in the trial court is not cognizable on appeal." (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).
Lastly, we turn to defendant's appeal from the order denying PCR. "'Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus.'" State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)).
It is well-settled that to set aside a conviction based upon a claim of ineffective assistance of counsel, a petitioner must prove, by a preponderance of the evidence, that (1) counsel performed deficiently, and made errors so serious that he or she was not functioning as counsel guaranteed by the Sixth Amendment; and (2) defendant suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); [] Preciose, [supra,] 129 N.J. [at] 459 (reciting preponderance of the evidence standard of proof)[.]
[State v. L.A., 4 33 N.J. Super. 1, 13 (App. Div. 2013).]
New Jersey has adopted Strickland's two-prong test. State v. Fritz, 105 N.J. 42, 58 (1987). Under the first prong of the Strickland test, a defendant must demonstrate "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This requires a showing that counsel was so deficient that "counsel was not functioning as [] counsel guaranteed by the Sixth Amendment." State v. Gaitan, 209 N.J. 339, 349-50 (2012) (internal quotation marks and citation omitted), cert. denied, ___ U.S. ___ , 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Thus, "[t]his test requires [a] defendant identify specific acts or omissions that are outside the wide range of reasonable professional assistance." State v. Jack, 144 N.J. 240, 249 (1996) (internal quotation marks and citation omitted). "The test is not whether defense counsel could have done better, but whether he [or she] met the constitutional threshold for effectiveness." State v. Nash, 212 N.J. 518, 543 (2013).
In this regard, to establish a prima facie case of ineffective assistance of counsel, a defendant must articulate "specific facts" that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992). "[B]ald assertions," unaccompanied by evidential support, are insufficient. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 852 (1999).
To meet the second prong under Strickland, "[a] defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid.
New Jersey's "public policy [aims] to promote finality in judicial proceedings," so the "rules provide various procedural bars [to PCR petitions]." State v. Echols, 199 N.J. 344, 357 1091 (2009) (internal quotation marks and citation omitted). One such procedural bar is Rule 3:22-5, which states: "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding . . . or in any appeal taken from such proceedings." See also State v. Marshall, 173 N.J. 343, 350 (2002) (holding Rule 3:22-5 bars a petitioner from asserting as a ground for relief any claim previously adjudicated on the merits). This procedural bar applies where the claim raised is "'identical or substantially equivalent'" to a claim raised on direct appeal or in a prior PCR petition. State v. McQuaid, 147 N.J. 464, 484 (1997) (quoting Picard v. Connor, 404 U.S. 270, 276-77, 92 S. Ct. 509, 512-13, 30 L. Ed. 2d 438, 444 (1971)). One "very limited exception," under which Rule 3:22-5 may be relaxed, allows consideration of a previously adjudicated issue on the merits "when a 'constitutional problem presented is of sufficient import[.]'" State v. Franklin, 184 N.J. 516, 528 (2005) (quoting State v. Johns, 111 N.J. Super. 574, 576 (App. Div. 1970), certif. denied, 60 N.J. 467, cert. denied, 409 U.S. 1026, 93 S. Ct. 473, 34 L. Ed. 2d 319 (1972)). See also Pressler & Verniero, Current N.J. Court Rules, comment on R. 3:22-5 (2014) (stating "the rule is relaxable where the constitutional problems raised are of substantial import").
Further, procedural and time limitations are set forth in Rule 3:22-4 and Rule 3:22-12, which were amended effective February 1, 2010. Each of these rules bars defendant's requested relief.
Rule 3:22-4(b) requires the dismissal of a second or subsequent PCR petition, unless:
(1) it is timely under [Rule] 3:22-12(a)(2); and
(2) it alleges on its face either:
(A) that the petition relies on a new rule of constitutional law, made retroactive to defendant's petition by
the United States Supreme Court or the Supreme Court of New Jersey, that was unavailable during the pendency of any prior proceedings; or
(B) that the factual predicate for the relief sought could not have been discovered earlier through the exercise of reasonable diligence, and the facts underlying the ground for relief, if proven and viewed in light of the evidence as a whole, would raise a reasonable probability that the relief sought would be granted; or
(C) that the petition alleges a prima facie case of ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief.
The time limitations of Rule 3 :22-12(a)(2) preclude consideration of a second PCR petition, unless:
Finally, subsections (c) directs, "[t]hese time limitations shall not be relaxed, except as provided herein." R. 22-12(c).Notwithstanding any other provision in this rule, no second or subsequent petition shall be filed more than one year after the latest of:
(A) the date on which the constitutional right asserted was initially recognized by the United States Supreme Court or the Supreme Court of New Jersey, if that right has been newly recognized by either of those Courts and made retroactive by either of those Courts to cases on collateral review; or
(B) the date on which the [*12] factual predicate for the relief sought was discovered, if that factual predicate could not have been discovered earlier through the exercise of reasonable diligence; or
(C) the date of the denial of the first or subsequent application for postconviction relief where ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief is being alleged.
Guided by these principles, we affirm the order dismissing defendant's PCR petition as untimely. No fundamental injustice results from imposing the rules to bar defendant's allegation of pre-trial procedural errors, which were known for twenty-five years. Defendant's assertions were properly barred. R. 22-4(b); R. 3:22-12(a)(2).
Moreover, defendant has or could have raised these claims on appeal and in prior post-conviction proceedings. In his prior PCR petition and in his federal appeals, defendant challenged the fairness of his trial, predominately attacking the judge's decision to allow his self-representation and the results of various pre-trial motions. In his federal appeals, defendant raised the claim his rights were violated when he was absent from jury selection. The District Court rejected his claim as the facts of record showed defendant refused to attend the proceeding. Thus, his voluntary decision to abstain caused no constitutional deprivation. These claims were properly deemed barred. R. 3:22-4(b); R. 3:22-5; R. 3:22-12(a)(2).
The orders on both matters, A-5683-09 and A-0938-12 are affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION